The closely-watched Georgia State University e-reserves trial wrapped up in Atlanta Wednesday, with closing arguments by both sides. Judge Orinda Evans will now decide the case, following two scheduled rounds of post-trial filings, due on July 15, and July 22. But in a setback for publishers, Evans will decide the case on a single claim of “indirect liability” after granting a defense motion for a “directed verdict” that in effect dismissed publishers’ contributory infringement claim (although it is subject to appeal).

Tucked into a docket entry posted late last week, the motion was granted following the close of the plaintiff’s case on May 26. Directed verdicts are uncommon in non-jury bench trials like this one. In essence, with a “directed verdict,” a judge “directs” a jury to a certain finding when a party has failed to present a case that could be decided any other way. In granting the defendant’s motion for a directed verdict, therefore, Evans for all intents and purposes ruled that publishers failed to present a contributory infringement claim upon which they could prevail.

Evans will now rule solely on the indirect liability claim. At trial, publishers argued that four officials at Georgia State oversaw the drafting and implementation of a “fatally flawed” copyright policy, including a fair use checklist that “leads copyright-novice professors almost without exception to affirmative fair use findings that are contrary to law.” The inevitability of fair use determinations via the checklist, coupled with GSU’s failure to pay for, budget for, or even to “establish any procedures for obtaining permission to post electronic course materials,” further suggested a systematic attempt to evade responsibility for copyright compliance, publishers argued, in essence an illegal plan to use e-reserves as a low-cost “market replacement” for traditional printed coursepacks.

Ironically, the remaining “indirect liability” claim almost didn’t make it to trial. Brought as a claim of direct liability, it was initially dismissed by Evans, but was later restored as an indirect liability claim. In their original filing, publishers alleged direct infringement via “respondeat superior,” a legal term that applies to situations where subordinates undertake tortious acts under terms of their employment. But “respondeat superior,” Evans ruled last fall, only applies as a basis for “indirect liability.” In granting a publisher motion to reconsider, however, Evans said she never intended to summarily reject the underlying merit of the publishers claim, and restored it for trial “to the extent that it is based on a theory of indirect infringement.”

While not a fatal blow, observers say the directed verdict on the contributory infringement claim does not bode well for publishers. That’s because, even if the judge does find that a percentage of professors made incorrect fair use determinations, and did so based on the GSU policy, the injunction publishers have proposed—a proposal that has alarmed many in the academic community—seems like a drastic, unlikely remedy. “Not only would this injunction require all faculty, all librarians, all students, basically everyone at GSU to seek permission for pretty much everything they use, it also asks the judge to order GSU to police all uses and certify adherence to the injunction,” observed copyright scholar Peggy Hoon on the Collecteana blog last week. Hoon said the publishers’ proposed injunction was “onerous, intrusive, far-reaching” and “incompatible with the reality of teaching and learning in the 21st century.”

In theory, the publishers would have to find just one infringement by one professor to win on the remaining claim, notes Association of Research Libraries’ Brandon Butler, who has followed the case closely. “At the same time, the massive and punitive injunction publishers are asking for is out of proportion to anything less than large scale, rampant infringement,” Butler told PW. Even if publishers prevail, “the scope of a remedy based on a narrow finding of ‘respondeat superior’ should be much narrower,” he added. For example, some professors might be ordered to attend “the copyright equivalent of DUI school,” Butler suggested, or GSU may be required to do more education, something more universities are already doing, he notes, with the hiring of special copyright counsel “to keep faculty educated about fair use and other copyright issues.”

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